(1) The growth potential of e-commerce in the Union has not yet been fully exploited.
The Digital Single Market Strategy for Europe tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential.
Ensuring better access for consumers to digital_content and digital_services, and making it easier for businesses to supply digital_content and digital_services, can contribute to boosting the Union's digital economy and stimulating overall growth.
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(5) consumers are not always confident when buying cross border and especially when it is done online.
One of the major factors for consumers' lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital_content or digital_services.
Many consumers experience problems related to the quality of, or access to, digital_content or digital_services.
For instance, they receive wrong or faulty digital_content or digital_services, or they are not able to access the digital_content or digital_service in question.
As a result, consumers suffer financial and non-financial detriment.
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(6) In order to remedy such problems, both businesses and consumers should be able to rely on fully harmonised contractual rights in certain core areas concerning the supply of digital_content or digital_services across the Union.
Full harmonisation of some key regulatory aspects would considerably increase legal certainty for consumers and businesses.
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(8) consumers should benefit from harmonised rights for the supply of digital_content and digital_services that provide a high level of protection.
They should have clear mandatory rights when they receive or access digital_content or digital_services from anywhere in the Union.
Having such rights should increase their confidence in acquiring digital_content or digital_services.
It should also contribute to reducing the detriment consumers currently suffer, since there would be a set of clear rights that will enable them to address problems they face with digital_content or digital_services.
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(11) This Directive should lay down common rules on certain requirements concerning contracts between traders and consumers for the supply of digital_content or a digital_service.
For this purpose, rules on the conformity of digital_content or a digital_service with the contract, remedies in the event of a lack of such conformity or a failure to supply and the modalities for the exercise of those remedies, as well as on the modification of digital_content or a digital_service, should be fully harmonised.
Fully harmonised rules on some essential elements of consumer contract law would make it easier for businesses, especially SMEs, to offer their products in other Member States.
consumers would benefit from a high level of consumer protection and welfare gains by fully harmonising key rules.
Member States are precluded within the scope of this Directive from providing for any further formal or substantive requirements.
For example, Member States should not provide for rules on the reversal of the burden of proof that are different from those provided for in this Directive, or for an obligation for the consumer to notify the trader of a lack of conformity within a specific period.
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(16) Member States should also remain free to extend the application of the rules of this Directive to contracts that are excluded from the scope of this Directive, or to otherwise regulate such contracts.
For instance, Member States should remain free to extend the protection afforded to consumers by this Directive also to natural or legal persons that are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or SMEs.
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(19) The Directive should address problems across different categories of digital_content, digital_services, and their supply.
In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital_content or digital_service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital_services which allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.
As there are numerous ways for digital_content or digital_services to be supplied, such as transmission on a tangible medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital_content or access to the use of social media, this Directive should apply independently of the medium used for the transmission of, or for giving access to, the digital_content or digital_service.
However, this Directive should not apply to internet access services.
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(20) This Directive and Directive (EU) 2019/771 of the European Parliament and of the Council (3) should complement each other.
While this Directive lays down rules on certain requirements concerning contracts for the supply of digital_content or digital_services, Directive (EU) 2019/771 lays down rules on certain requirements concerning contracts for the sale of goods.
Accordingly, in order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for traders of digital_content, this Directive should also apply to digital_content which is supplied on a tangible medium, such as DVDs, CDs, USB sticks and memory cards, as well as to the tangible medium itself, provided that the tangible medium serves exclusively as a carrier of the digital_content.
However, instead of the provisions of this Directive on the trader's obligation to supply and on the consumer's remedies for failure to supply, the provisions of Directive 2011/83/EU of the European Parliament and of the Council (4) on obligations related to the delivery of goods and remedies in the event of the failure to deliver should apply.
In addition, the provisions of Directive 2011/83/EU on, for example, the right of withdrawal and the nature of the contract under which those goods are supplied, should also continue to apply to such tangible media and the digital_content supplied on it.
This Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
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(23) Digital representations of value such as electronic vouchers or e-coupons are used by consumers to pay for different goods or services in the digital single market.
Such digital representations of value are becoming important in relation to the supply of digital_content or digital_services, and should therefore be considered as a method of payment within the meaning of this Directive.
Digital representations of value should also be understood to include virtual currencies, to the extent that they are recognised by national law.
Differentiation depending on the methods of payment could be a cause of discrimination and provide an unjustified incentive for businesses to move towards supplying digital_content or a digital_service against digital representations of value.
However, since digital representations of value have no other purpose than to serve as a method of payment, they themselves should not be considered digital_content or a digital_service within the meaning of this Directive.
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(24) Digital content or digital_services are often supplied also where the consumer does not pay a price but provides personal_data to the trader.
Such business models are used in different forms in a considerable part of the market.
While fully recognising that the protection of personal_data is a fundamental right and that therefore personal_data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies.
This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital_content or a digital_service to the consumer, and the consumer provides, or undertakes to provide, personal_data.
The personal_data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal_data that the consumer might upload or create with the use of the digital_content or digital_service.
Union law on the protection of personal_data provides for an exhaustive list of legal grounds for the lawful processing of personal_data.
This Directive should apply to any contract where the consumer provides or undertakes to provide personal_data to the trader.
For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital_content or digital_service, or other than complying with legal requirements.
It should equally apply where the consumer gives consent for any material that constitutes personal_data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes.
Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled.
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(28) The market for number-independent interpersonal communications services, which do not connect with publicly assigned numbering resources, is rapidly evolving.
In recent years, the emergence of new digital_services which allow interpersonal communications over the internet, such as web-based email and online messaging services, has led more consumers to use such services.
For such reasons, it is necessary to provide effective consumer protection with respect to such services.
This Directive should therefore also apply to number-independent interpersonal communications services.
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(35) The commercial practice of bundling offers of digital_content or digital_services with the provision of goods or other services is subject to Directive 2005/29/EC of the European Parliament and of the Council (11) concerning unfair business-to- consumer commercial practices in the internal market.
Such bundling is not in itself prohibited under Directive 2005/29/EC.
However, it is prohibited where it is deemed unfair, following a case-by-case assessment pursuant to the criteria laid down in that Directive.
Union law on competition also allows addressing tying and bundling practices, when they affect the competitive process and harm consumers.
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(41) There are various ways for the trader to supply digital_content or digital_services to consumers.
It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital_content or a digital_service available or accessible to the consumer.
The digital_content or digital_service should be considered to be made available or accessible to the consumer when the digital_content or digital_service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital_content or digital_service in accordance with the contract.
Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital_content or digital_service, it should be sufficient for the trader to supply the digital_content or digital_service to that third party.
However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader's control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital_content or digital_service but that choice was the only one offered by the trader to receive or access the digital_content or digital_service.
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(44) Given that digital_content and digital_services are constantly developing, traders may agree with consumers to provide updates and features as they become available.
The conformity of the digital_content or digital_service should, therefore, also be assessed in relation to whether the digital_content or service is updated in the manner that has been stipulated in the contract.
Failure to supply updates that had been agreed to in the contract should be considered a lack of conformity of the digital_content or digital_service.
Moreover, defective or incomplete updates should also be considered a lack of conformity of the digital_content or digital_service, given that that would mean that such updates are not performed in the manner stipulated in the contract.
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(45) In order to be in conformity and to ensure that consumers are not deprived of their rights, for example in cases where the contract sets very low standards, the digital_content or digital_service should not only comply with the subjective requirements for conformity, but should in addition comply with the objective requirements for conformity set out in this Directive.
Conformity should be assessed, inter alia, by considering the purpose for which digital_content or digital_services of the same type would normally be used.
It should also possess the qualities and performance features which are normal for digital_content or digital_services of the same type and which consumers can reasonably expect, given the nature of the digital_content or digital_service, and taking into account any public statements on the specific characteristics of the digital_content or digital_service made by or on behalf of the trader or other persons in previous links of the chain of transactions.
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(55) The trader should be liable to the consumer in the event of a lack of conformity of the digital_content or digital_service, and for any failure to supply the digital_content or digital_service.
As digital_content or digital_services can be supplied to consumers through one or more individual acts of supply or continuously over a period of time, it is appropriate that the relevant time for the purpose of establishing conformity of the digital_content or digital_service be determined in the light of those different types of supply.
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(56) Digital content or digital_services can be supplied to consumers through a single act of supply, for instance when consumers download an e-book and store it on their personal device.
Similarly, the supply can consist of a series of such individual acts, for instance where consumers receive a link to download a new e-book every week.
The distinctive element of this category of digital_content or digital_service is the fact that consumers thereafter have the possibility to access and use the digital_content or digital_service indefinitely.
In such cases, the conformity of the digital_content or digital_service should be assessed at the time of supply, and therefore the trader should only be liable for any lack of conformity which exists at the time when the single act of supply or each individual act of supply takes place.
In order to ensure legal certainty, traders and consumers should be able to rely on a harmonised minimum period during which the trader should be held liable for a lack of conformity.
In relation to contracts which provide for a single act of supply or a series of individual acts of supply of the digital_content or digital_service, Member States should ensure that traders are liable for not less than two years from the time of supply, if under their respective national law the trader is only liable for any lack of conformity that becomes apparent within a period of time after supply.
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(57) Digital content or digital_services could also be supplied to consumers in a continuous manner over a period of time.
Continuous supply can include cases whereby the trader makes a digital_service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership.
The distinctive element of this category is the fact that the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.
Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file.
Cases where specific elements of the digital_content or digital_service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.
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(58) Member States should remain free to regulate national limitation periods.
However, such limitation periods should not prevent consumers from exercising their rights throughout the period of time during which the trader is liable for a lack of conformity.
While this Directive should therefore not harmonise the starting point of national limitation periods, it should nevertheless ensure that such periods still allow consumers to exercise their remedies for any lack of conformity that becomes apparent at least during the period during which the trader is liable for a lack of conformity.
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(60) Without prejudice to the fundamental right to the protection of private life, including confidentiality of communications, and to the protection of personal_data of the consumer, the consumer should cooperate with the trader in order for the trader to ascertain whether the cause of the lack of conformity lies in the consumer's digital_environment using the technically available means which are least intrusive for the consumer.
This can often be done for instance by providing the trader with automatically generated incident reports or with details of the consumer's internet connection.
Only in exceptional and duly justified circumstances where, despite the best use of all other means, there is no other way possible, consumers may need to allow virtual access to their digital_environment.
However, where the consumer does not cooperate with the trader and the consumer had been informed of the consequences of non-cooperation, it should be for the consumer to prove not only that the digital_content or digital_service is not in conformity, but also that the digital_content or digital_service was not in conformity at the time of supply of the digital_content or digital_service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract.
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(62) In the case of lack of conformity, consumers should be entitled to have the digital_content or digital_service brought into conformity, to have a proportionate reduction in the price, or to terminate the contract.
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(68) Where the consumer terminates the contract, the trader should reimburse the price paid by the consumer.
However, there is a need to balance the legitimate interests of consumers and traders where the digital_content or digital_service is supplied over a period of time and the digital_content or digital_service was in conformity only for part of that period.
Therefore, upon termination, the consumer should only be entitled to the part of the price paid that corresponds and is in proportion to the length of time during which the digital_content or digital_service was not in conformity.
The consumer should also be entitled to any part of the price paid in advance for any period that would have remained after the contract was terminated.
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(69) Where personal_data are provided by the consumer to the trader, the trader should comply with the obligations under Regulation (EU) 2016/679.
Such obligations should also be complied with in cases where the consumer pays a price and provides personal_data.
Upon termination of the contract, the trader should also refrain from using any content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader.
Such content could include digital images, video and audio files and content created on mobile devices.
However, the trader should be entitled to continue to use the content provided or created by the consumer in cases where such content either has no utility outside the context of the digital_content or digital_service supplied by the trader, only relates to the consumer's activity, has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts, or has been generated jointly by the consumer and others, and other consumers can continue to make use of it.
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(73) The principle of the liability of the trader for damages is an essential element of contracts for the supply of digital_content or digital_services.
Therefore, the consumer should be entitled to claim compensation for detriment caused by a lack of conformity or a failure to supply the digital_content or digital_service.
The compensation should put the consumer as much as possible into the position in which the consumer would have been had the digital_content or digital_service been duly supplied and been in conformity.
As such a right to damages already exists in all Member States, this Directive should be without prejudice to national rules on the compensation of consumers for harm resulting from infringement of those rules.
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(76) consumers should be informed of modifications in a clear and comprehensible manner.
Where a modification negatively impacts, in more than a minor manner, the access to or use of digital_content or a digital_service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable_medium.
A durable_medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer's relationship with the trader.
Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.
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(82) Annex I to Directive 2009/22/EC of the European Parliament and of the Council (17) should be amended to include a reference to this Directive so as to ensure that the collective interests of consumers laid down in this Directive are protected.
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(83) consumers should be able to benefit from their rights under this Directive as soon as the corresponding national transposition measures begin to apply.
Those national transposition measures should, therefore, also apply to contracts of an indefinite or fixed duration which were concluded before the application date and provide for the supply of digital_content or digital_services over a period of time, either continuously or through a series of individual acts of supply, but only as regards digital_content or a digital_service that is supplied from the date of application of the national transposition measures.
However, in order to ensure a balance between the legitimate interests of consumers and traders, the national measures transposing the provisions of this Directive on the modification of the digital_content or digital_service and the right to redress should only apply to contracts concluded after the application date pursuant to this Directive.
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